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MSC revamps jury rules

Beginning Sept. 1, juries can become more actively involved in the trial process under a wholesale revision of jury rules approved by the Michigan Supreme Court.

The changes will give “jurors the tools they need for their very demanding job: seeking the truth,” said Chief Justice Robert P. Young, Jr.

Some procedures, such as providing a jury with preliminary instructions before the trial begins, are required. Other procedures, such as juror note-taking and submitting questions through the judge, are left to the trial judge’s discretion.

Jurors can, with the judge’s permission, submit questions to witnesses through the judge. Criminal procedure rules already contained such a provision, but the new rule includes jurors in civil cases as well.

Jurors can, if permitted by the judge, take notes during trial and use those notes during the jury’s deliberations.

The jury can request to view “property or … a place where a material event [such as a crime scene] occurred.”

In civil cases, the judge “may instruct the jurors that they are permitted to discuss the evidence among themselves in the jury room during trial recesses,” as long as all jurors are present.

After the jury is sworn, the judge “shall provide the jury with pretrial instructions reasonably likely to assist in its consideration of the case,” covering “the duties of the jury, trial, procedure, and the law applicable to the case ….” The rule also requires the court to give jurors copies of the instructions.

The judge may “authorize or require” attorneys to provide jurors with “a reference document or notebook,” which would include a list of witnesses, relevant provisions in statutes, and copies of any documents at issue, such as a contract. Other items, such as preliminary jury instructions, trial exhibits, “and other admissible information,” can also be added to the notebook.

The judge may require attorneys to prepare “concise, written summaries of depositions” for the jury instead of having the full deposition read aloud. In addition to making opening and closing statements, attorneys may, “in the court’s discretion, present interim commentary at appropriate junctures of the trial.”

The Court can schedule expert testimony to assist jurors’ understanding of the issues – for example, by having expert witnesses testify sequentially. Another option is to allow each expert to be present for the opposing expert’s testimony, so that the expert can “aid counsel in formulating questions to be asked of the testifying expert on cross-examination.”

Judges may “fairly and impartially sum up the evidence” after closing arguments, while also reminding jurors that they must decide fact issues for themselves. The rule bars judges from commenting on a witness’s credibility or stating a conclusion “on the ultimate issue of fact before the jury.”

Judges are required to give the jury a copy of the final jury instructions to take into the jury room for final deliberations. In addition, judges must invite jurors to ask any questions they may have to clarify the instructions. In addition to jurors’ notes and final jury instructions, the judge “may permit the jurors to take into the jury room the reference document … as well as any exhibits and writings admitted into evidence.”

The judge “may not refuse a reasonable request” from jurors to review evidence or testimony as they deliberate.

If the jury appears to reach an impasse during deliberations, the judge “may invite the jurors to list the issues that divide or confuse them in the event that the judge can be of assistance in clarifying or amplifying the final instructions.”

Justice Diane M. Hathaway dissented. She acknowledged that expanded juror note-taking and giving jurors the ability to ask questions during trial, “if properly used, have a valid place in our judicial system.”

However, she said, the new rules

contain multiple procedures that are highly controversial and are likely to prove problematic, particularly when litigants are forced to use them by a trial judge. The new rules include controversial procedures such as using deposition summaries in lieu of testimony, interim jury deliberations, and interim commentary by attorneys.

Hathaway also complained that there was insufficient information collected from the courts participating in the pilot program to make an informed decision about some the changes and procedures adopted.

The new rules were adopted after a two-year pilot program in 12 courts.

According to the MSC, 91 percent of jurors surveyed in the pilot programs “agreed that being able to discuss the evidence before final deliberations helped them understand the case, focus on and recall the evidence, and reach a correct verdict.”

The court rules affected by the changes are MCR 2.512, 2.513, 2.514, 2.515, 2.516 and 6.414.